Baby case raises issues ‘of public importance’

The five-judge Supreme Court, presided over by the Chief Justice, yesterday reserved judgment as to whether the appeal raises such exceptionally important legal issues that the court should permit it to proceed to hearing. Photograph: Bryan O’Brien

The Supreme Court has been told the case of a baby placed in emergency care at one day old but now back with his mother under supervision of the HSE raises exceptionally important legal issues which the court should rule upon in the public interest.

Those issues concerned the rights of an innocent child and parent to be heard when an application for an emergency care order (ECO) was being made arising from alleged wrongdoing by the other parent, Michael O’Higgins SC, for the child, argued.

If the High Court’s decision dismissing the child’s claim of unlawful detention under the ECO was not overturned, it meant a parent who had a “wholly inadequate” opportunity to oppose an ECO could not challenge it until the next stage of childcare proceedings when an interim care order might be sought, he said.

Two “exceptionally important” issues arose from the High Court decision relating to the rights of parents, children and the HSE when applications for ECOs were being made, he submitted.

The first issue related to fair procedures, as the ruling meant an innocent mother’s voice need not be heard until the matter reached the stage where an interim care order was being sought, he said.

Need to justify removal The second issue was whether the High Court must inquire whether it was feasible for a child to remain with his mother. There was, counsel argued, “a positive obligation” on a court to consider if the removal of a child from an innocent parent was justified, but the High Court did not make that inquiry.

This case involved a one-day-old breastfeeding child being taken away from his mother against whom there was no allegation of wrongdoing, but the High Court effectively found, because of an “artificial” distinction between the mother and child as separate legal entities, she could not speak or reply until the next stage of child care proceedings, he said.

Counsel for the child’s father supported the application to have the court decide those issues, arguing they had implications for many other families. The Chief Justice, Mrs Justice Susan Denham, said this was not a test case.

No important issues Tim O’Leary SC, for the HSE, argued that, because the child had now been reunited with his mother, his appeal against the High Court finding was moot and raised no sufficiently important issue to require determination by the Supreme Court.

The HSE had sought the care order ex parte (one side only represented), as it was entitled to do, but had put the mother and child on notice.

The five-judge court, presided over by the Chief Justice, yesterday reserved judgment as to whether the appeal raises such exceptionally important legal issues the court should permit it to proceed to hearing.

The proceedings arose after gardaí took the child from a house last September when he was one day old arising from an ECO application by the HSE under Section 13 of the 1991 Act.